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Legal Studies: The Commonwealth Constitution (Referendums (Low success…
Legal Studies: The Commonwealth Constitution
Division of Powers
Residual Power
Exclusive to States
Eg. Education, public transport
Specific Power
Concurrent Power
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Shared by Commonwealth and State
Eg, Marriage, trade
Mostly contained in s51
Exclusive Power
Exclusive to Commonwealth
Eg, Coining money, raising an army, naturalisation
Mostly contained in s51 and s52
s109
In areas of concurrent power when State legislation is inconsistent with Commonwealth legislation, Commonwealth prevails and the state legislation is declared inavlid to the extent of the inconsistency
This restricts State parliament
Eg IVF Case
High Court Interpretation
Koowarta Case
4/7 judges agreed
2 different tests
Mr Koowarta v Queensland
Commonwealth gained power
Franklin Dam Case
Determined the test
mere existence of treaty makes legislation valid under the external affairs power
Tasmania v Commonwealth
Commonwealth gained power
External Affairs power
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s51
Cannot change the wording of the Constitution
High Court established under s71 of the Commonwealth Constitution
Constitutional Restrictions of Power
Restricted from making laws in areas of residual power
Restricted by areas prohibited by the constitution
Prohibition protecting the rights of States
s92,s99,s106,s107,s108
Prohibition protecting the rights of Individuals
s80,s116
Referendums
1946 Social Services Referendum
1 of 8 successful referendums
Key factor of Success: The necessity of the referendum to pass
s51(xxiiiA)
Not all referendums change the division of law-making power
4 succesful referendums have changed the division of law-making power
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In all cases Commonwealth gained power
Low success rate
Voting according to party policy
Confusion or/and suspicion
Lack of bipartisan Support
Conservative voters
Cost
Timing
Often at same time as elections meaning theres a lack of focus
Double Majority
Very difficult to achieve
Both the majority of voters in Australia and the majority of voters in the majority of states must vote 'yes'
Community support against change
Parliament
The People
The Governor-General
One house can pass the referendum twice
Generally only uncontroversial referendums or those with wrong community support will pass
Referal of Powers
To
Protection of Rights
Constitutional Comparison Canada V Australia
Entrenched/Expressed
Australia
Entrenched in Constitution
Canada
Entrenched in Charter
Charter is entrenched in Constitution
Can they be changed?
Australia
Through the s128 Referendum Process
Canada
Through the Referendum Process
Rights can be overruled (for a 5 year limit)
Enforced
Australia
High court may deem conflicting legislation invalid
Canada
Initially enforced by Parliaments interpretation of whether legislation conflicts with human rights
High Court may deem conflicting legislation invalid
Interpretation and Limits of Rights
Australia
Canada
Supremacy
Australia
Supremacy remains with Commonwealth if they act within the Constitution
Commonwealth cannot overrule High Court
Canada
Supremacy remains with Commonwealth if they act within the Constitution
Protected Rights
Australia
5 Express rights
1 implied right
Canada
34 Expressed rights
No implied rights